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care which every man of common sense, under the circumstances, takes of his own property.* 561* *The main inquiry in this case is, what is the duty, and what is the responsibility of the bailee. The general measure of diligence requisite in every species of bailment is regulated, in a greater or less degree. by the nature and quality of the thing bailed, and by the understanding and practice of the city or country in which the parties resided or happened to be. Diligence is a relative term; and it is evident that what would amount to the requisite diligence at one time, in one situation, and under one set of circumstances, might not amount to it in another.* The deposit is to be kept with the ordinary care applicable to the case under its circumstances, and the depositary cannot make use of the thing
• Jones' Essay, 90—93. Lord Holt, in Coggs v. Barnard, 2 hard Raym 913. In the civil law, gross negligence was termed magna culpa, or lata culpa, and it was in some cases deemed equivalent to fraud or deceit Lord Ch. J. Tindal, in 2 Manning .} Oranger, 852, 1 Adol. d> Ellis, N. S. 38, says that it also, in the English law, approximates to and cannot be distinguished from dolus malus, or misconduct . But it is not fraud by inference of law, but a matter of fact for a jury. Wilson v. Y. & M. R. Road, 11 Gill. d} Johnson, 58. It was put by Paulus for fraud, and by Ulpian, it was held to be plainly assimilated to fraud. Magna negligentia culpa est, magna culpa dolus est. Lata culpa plane dolo comparabitur. Dig. 50. 16. 226. Ibid. 11. 6. 1. 1. It was not understood by the civilians to be absolutely fraud, but only the presumptive evidence of fraud. when applied to cases of trust. In many other cases the presumption was not raised. It was not held to be such under the Cornelian law, ne in hae lege culpa lata pro dolo accipitur. Dig. 48. 8. 7. Proculus would not admit that lata culpa amounted to dolus; but Nerva and Celsus insisted that it amounted to the same thing, in effect, when applied to bailment; for though a person had not ordinary care, yet, if he bestowed lees care than was ordinary for him on a thing confided to his care, it was evidence of bad faith. Dig. 16. 3. 32. Culpam tamen dolo proximam continert quis merito dicerit. Dig. 43. 26. 8. 3. Deceit (Dolus) is any subtle contrivance, by words or acts, with a design to circumvent. Fraud imports damage or detriment.
,• Batson v. Donovan, 4 Barnw. <$- Aid. 21. Story's Comm. on Bailments, 9—12.
deposited, without the consent of the bailor expressly given, or reasonably implied.*
In Bonian's case* the depositary had a chest containing plate and jewels deposited with him. The chest was locked, and he was not informed of the contents. In the night his house was broken open and plundered, as well of the chest with its contents, as of his own goods. An attempt was made to charge the bailee; but there was no foundation for the charge, since the bailee used ordinary diligence, and the loss was by a burglary; and it was accordingly held, that the bailee was not answerable. Such a bailee, who receives goods to keep gratis, is under the least responsibility of any species of trustee. If he keeps the goods as he keeps his own, though he keeps his own negligently, he is not answerable *for them; for the keeping them as he #562 keeps his own is an argument of his honesty. "If," says Lord Holt, " the bailee be an idle, careless, drunken fellow, and comes home drunk, and leaves all his doors open, by reason whereof the goods deposited are stolen, together with his own, he shall not be charged because it is the bailor's own folly to trust such an idle fellow."c
'• Dig. 16.3. 29. Pothisr, Traite ds Depot, No. 34. Story's Comm. 67—70.
b Year Book, 8 Edw. II. Fitz. Abr. tit. Detinue, p). 59, and cited by Lord Holt, in 2 Lord Raym. 914, and in Jones on Bailment, 28.
• The civil law did not exact of the depositary any greater diligence than that he was wont to bestow on his own property under the like circumstances; and the civil law has been followed, in this respect by Bracton, Holt, and Sir William Jones. Dig. 16. 3. 32. Bracton, lib. 3. 99. b. 2 Lord Raym. 914. Jones on Bailment, 90—93. It was considered, that there was no just ground to infer bad faith in such a case. If the depositor knew the general character, employment and situation of the depositary, or was presumed to know him, the rule of the civil law is a sound and just rule. But if the depositor did not know these circumstances, then it has been held, that the depositary is bound to bestow ordinary care on the deposit, though he does not on his own goods; and that such care is to be ascertained without reference to the character of the depositary. The William, 6 Rob. Rep. 316. Story's Comm. 43—48. Great stress is and
As he assumes the trust gratuitously, he is bound to good faith. He is only answerable for fraud, or for that gross neglect which is evidence of fraud. Indeed, if such a bailee had undertaken to keep the goods safely, yet as he hath nothing for keeping them, he would not be responsible for the loss of them by violence.11 563* *The Roman law was the same as to the responsibility of a depositary. He was only answerable under that law for fraud, and not for negligence. He was not answerable if the thing had been stolen from him, even though it had been carelessly kept. He who commits his goods to the care of a negligent friend, must impute the loss not to his friend, but to his own want of prudence; or, as Bracton,b who copied this rule from the Institutes of Justinian,0 observed, he must set down the loss to the account of his own folly.
Lord Coke,d laid down a different doctrine on the subject of the responsibility of a depositary. It was held in Southcote's case, that where a person received goods to keep safely, and they were stolen by one of his servants,
ought to be laid upon the habits, employment, and character of the depositary, and they are to be taken intoconsideration. In Sodowsky v. M' Farland, 3 Dana's Ken. R. 205, it was held, that a mere depositary or mandatory was liable only on account of loss from his culpable negligence
• Lord Holt, in Coggs v. Bernard, 2 Lord Raynu 915. Jones on Bailment, 34. Lord Holt followed the language of the civil law. and said that gross negligence in the case of bailment was " looked upon as an evidence of fraud." "Neglect is a deceit to the bailor ; for when he intrusts the bailee, upon his undertaking to be careful, he has put a fraud upon the bailor by being negligent." Sir William Jones expressed himself too strongly, and Mr. Justice Story in his Commentaries, has, I think, clearly shown, when he laid it down as a rule of the common law, that gross negligence was equivalent to fraud. It may arise from mere thoughtlessness, or absence of mind, and consist, in some cases, with honesty of intention; but it is loolsed upon as eeidence of fraud, and it would require strong and peculiar circumstances to rebut that presumption. Lata culpa finis est, non inielligere id, quod omnes intelUgunt. Dig. 50. 16. 223.
bLib.3. ch. 2. 99. b.
• Inst. 3. 15.3.
< Co. Litt. 89. a. b. 4 Co. 83.
he was responsible to the bailor for the loss. The reason of the decision was, that there was a special acceptance to keep safely, and the case afforded an inference that the bailee had not used that ordinary care and diligence which such a special acceptance required, and the goods were stolen by one of his own servants. It is supposed by Sir William Jones,* that the case itself may be good law; but the doctrine which Lord Coke deduced from it was not warranted by the case, nor by reason, or the general principles of law. Lord Coke said, there was no difference between a general acceptance to keep, and a special acceptance to keep safely; and he *ad- *564 vised every one who received goods to keep, to accept specially to keep as his own, and then he would not be responsible for the loss by theft. But the judges of the K. B., in Coggs v. Bernard,* expressly overruled every such deduction from Southcote's case; and they insisted that there was a material distinction between a general bailment and a special acceptance to keep safely. Lord Holt was of opinion that Coke had improved upon Southcote's case, by drawing conclusions not warranted by it; and this has been shown more fully, and with equal acuteness and learning, by Sir William Jones; and I would recommend what he says upon that case as a fine specimen of judicial criticism.
If the depositary be an intelligent, sharp, careful man in respect to his own affairs, and the thing intrusted to him be lost by a slight neglect on his part, the better opinion would seem to be, that he then is reponsible. Po
* Jones on Bailment, 32, 33. The opinion of the C. B., in Kettle v. Bromsall, Willif Rep. 118, goes in support of the point in judgment in Southcote's case; but, in the case of Foster v. The Essex Bank, 17 Mos: Rep. 479, tho doctrine of that case is held to be exploded. Iu this last case there was a special deposit of gold coin in a bank, and the cashier embezzled it, with the other property belonging to the bank, but as there was no evidence of gross negligence on the part of the bank, the banking corporation was held not liable to the depositor.
b Lord Raym. 909.
thiera says, that this has been a question with the civilians; and he is of opinion, the depositary would be liable in that case; for he was bound to that same kind of diligence which he uses in his own affairs, and an omission to bestow it was a breach of fidelity. But he admits that it would not be a very suitable point for forensic discussion to examine into the character of the depositary; and that the inquiry into the comparative difference between the attention that he bestows on his own affairs and on the interest of others, would be a little difficult. An example is stated by Pothier,b to test the fidelity of the depositary. His house is on fire, and he removes his own goods. and those of the bailor are burned; is he then responsible? He certainly is, if he had time to remove both. If he had not, Pothier then admits, that a breach of faith cannot be imputed to him, for having saved his own effects in preference to those of another iutrusted to
his keeping. But if the goods intrusted to him *565 were much *more valuable than his own, and as
easily removeable, then he ought to rescue the deposited goods, and to look to them for an average indemnity for the loss of his own.
There are several cases in which a naked depositary is answerable beyond the case of gross neglect. He is answerable, 1. When he makes a special acceptance to keep the goods safely. 2. When he spontaneously and officiously proposes to keep the goods of another. He is responsible in such a case for ordinary neglect; for he may have prevented the owner from intrusting the goods with a person of more approved vigilance. Both those exceptions to the general rule on the subject are taken from the Digest,"5 and stated by Pothier and Sir William Jones."*
» Contrat de Depot, No. 27.
e Pothier, Contrat de Depot, No. 30, 31, 32. Jones on Bailment, 37, 38. The French Code Cieil, art. 1927, 1928. Code of Louisiana, art.